Office of the Attorney General
State of Texas

Re: Whether Attorney General Opinion MW-393 (1981) has been
modified by the Indigent Health Care and Treatment Act (RQ-1329)

Dear Ms. Walsh and Mr. Rex:

You both ask whether the Indigent Health Care and Treatment
Act, article 4438f, V.T.C.S., overruled or modified Attorney
General Opinion MW-393 (1981), in which this office held that a
county could not pay visiting physicians on the medical staff of
the county hospital for treating indigent patients at the
hospital and that a county hospital could not pay salaried staff
physicians additional compensation for treating indigent patients
at the hospital. See also Attorney General Opinion O-2422
(1940). The basis for MW-393 was the following language
excerpted from article 4480, V.T.C.S.:

The board shall also appoint a staff of visiting physicians
who shall serve without pay from the county, and who shall visit
and treat hospital patients at the request either of the managers
or of the superintendent.

Said board shall fix the salaries of the superintendent and
all other officers and employees within the limit of the
appropriation made therefore by the commissioners court, and such
salaries shall be compensation in full for all services rendered.

The Indigent Health Care and Treatment Act, article 4438f,
V.T.C.S., specifies the obligations of counties, public
hospitals, and hospital districts for providing medical care for
indigents. A county hospital is a "public hospital" for purposes
of the Indigent Health Care and Treatment Act. V.T.C.S. art.
4438f, s 1.02(10); art. 4478. Therefore, a county hospital is
governed by the provisions applicable to public hospitals rather
than the provisions applicable to counties. See V.T.C.S. art.
4438f, ss 2.01, 3.01, 10.01, 11.01. See also V.T.C.S. art. 4484;
Attorney General Opinion M-379 (1969) (bills and accounts of
county hospital are paid and approved by commissioners court).
The act requires a public hospital to provide specified services
to persons who live within the area that the public hospital has
a legal obligation to serve. Id. s 10.01. Because a county
hospital has a legal obligation to serve the county in which the
hospital is situated, V.T.C.S. art. 4486, it must provide the
services specified in the Indigent Health Care and Treatment Act
to indigent persons who live within the county.

The services a public hospital is required to provide are
inpatient and outpatient hospital services. [FN1] V.T.C.S. art.
4438f, ss 11.01, 3.01. The Department of Human Resources has the
authority to promulgate rules more specifically defining the
required services. Id. s 1.06. The act contains the following
provisions regarding provision of services by a public hospital:

Sec. 11.03. (a) A public hospital or hospital district may
arrange to provide health care services through a local health
department, a publicly owned facility, a contract with a private
provider regardless of the provider's location, or through the
purchase of insurance for eligible residents.

(b) A public hospital or hospital district may affiliate with
other public hospitals or hospital districts or with a
governmental entity to provide regional administration and
delivery of health care services.

Sec. 11.04. A public hospital may select one or more
providers of health care services and, except in an emergency,
when medically inappropriate, or when care is not available,
require eligible residents to obtain care from a provider.

V.T.C.S. art. 4438f, ss 11.03, 11.04.

You suggest that those provisions are in conflict with article
4480, as interpreted by Attorney General Opinion MW-393. As MW-393 pointed out, article 4480 deals with two types of doctors who
may be on the medical staff of a county hospital: (1) visiting
physicians, who receive no pay, and (2) hospital employees, who
receive a salary in full compensation for all services they
render. Attorney General Opinion MW-393 concluded, based on the
clear language of article 4480, that if visiting physicians treat
indigents at the hospital, they may receive no pay for such
treatment and that if salaried physicians treat indigents at the
hospital, their salary is their only compensation for doing so.
Nothing in the Indigent Health Care and Treatment Act conflicts
with the language of article 4480 or with the specific holding of
MW-393. Therefore, the Indigent Health Care and Treatment Act did
not affect the specific holding of MW-393.

There is, however, dicta in MW-393 that suggests that a county
hospital's only authority to pay for physician services is its
authority under article 4480. To the extent that dicta in MW-393
suggests that conclusion, it has been modified by the Indigent
Health Care and Treatment Act. Section 11.03 of the act gives a
county hospital authority to pay for physician services at
locations other than the county hospital. See V.T.C.S. art. 4491
(a 1913 statute allowing a county hospital to contract with a
private hospital for the care of indigent patients). Also, the
Indigent Health Care Act may require a county hospital to provide
health-care services that salaried or visiting physicians are
unable to provide. In such circumstances, we think that the act
authorizes a county hospital to pay physicians other than those
contemplated by article 4480 for providing the required services.

SUMMARY

The Indigent Health Care and Treatment Act, article 4438f,
V.T.C.S., did not overrule the holding of Attorney General
Opinion MW-393 (1981). A county hospital is not authorized to
pay a visiting physician for his services as a visiting
physician, and a county hospital is not authorized to pay a
salaried physician additional compensation for treating indigent
patients at the hospital. To the extent, however, that dicta in
MW-393 suggests that a county hospital's only authority to pay
for physician services is article 4480, it has been modified.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman
Opinion Committee

Prepared by
Sarah Woelk
Assistant Attorney General

Footnotes

FN1. A public hospital is also required to continue providing any
additional health care services that it provided to eligible
residents during the operating year that ended before January 1,
1985.